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2008 SCC OnLine Bom 1017 : (2008) 6 Mah LJ 886 (FB) : (2009) 74 AIC 546
(Bom) (FB) : (2009) 1 ICC 222 (Bom) (FB) : (2008) 6 Bom CR 519 (FB) : (2009) 3
All LJ 69 (FB) : (2009) 2 AIR Bom R 296 (FB) : (2008) 5 CTC 577 (FB)

In the High Court of Bombay

O.O.C.J., Bombay
Civil Procedure Code, Order 13, Rules 3, 4 and Order 18, Rule 4
[Full Bench]
(BEFORE SWATANTER KUMAR, C.J. AND VIJAY C. DAGA AND V.M. KANADE, JJ.)

Hemendra Rasiklal Ghia … Petitioner;

Versus
Subodh Mody … Respondent.
W.P. Nos. 623 and 1902 of 2005 with Admiralty Suit No. 31 of 1995 with Suit No.
3681 of 1996 with Testamentary Suit No. 19 of 1999
Decided on October 16, 2008
(a) Civil Procedure Code, O. 18, R. 4 and O. 13, RR. 3, 4, 6 — Admissibility of evidence —
Objection to the document sought to be produced relating to the deficiency of stamp duty —
Objection must be taken when the document is tendered in evidence and such objection must
be judicially determined before it is marked as exhibit.
(Para 92)
(b) Civil Procedure Code, O. 18, R. 4 and O. 13, RR. 3, 4, 6 — Admissibility of evidence —
Objection relating to the proof of document of which admissibility is not in dispute must be
taken and judicially determined when it is marked as exhibit.
(Para 92)
(c) Civil Procedure Code, O. 18, R. 4 and O. 13, RR. 3, 4, 6 — Admissibility of evidence —
Objection to the document which in itself is inadmissible in evidence can be admitted at any
stage of the suit reserving decision on question until final judgment in the case.
(Para 92)
(d) Civil Procedure Code, O. 18, R. 4 — Admissibility of evidence — Objection to the
admissibility or relevancy of evidence contained in the affidavit of evidence filed can be admitted
at any stage reserving its resolution until final judgment in the case.
(Para 92)
(e) Civil Procedure Code, O. 18, R. 4 — Admissibility of evidence — Exercise of discretion by
Court — Court can always work out its own modality depending upon the peculiar facts of each
case without causing prejudice to the rights of the parties to meet the ends of justice and not to
give the handle to either of the parties to protract litigation — The aim should always be to
prevent miscarriage of justice and expedite trial, which is the dire need of the time.
(Para 92)
(f) Civil Procedure Code, O. 13, RR. 4, 6 and O. 18, R. 4(1) and Civil Manual, Chap. 27, Para
524 — Admissibility and/or proof of document — Objection to — Must be decided at the stage it
arises.
(Para 61)
(g) Civil Procedure Code, O. 13, RR. 4, 6 and Civil Manual, Para 524 — Exhibiting a document
— The question of exhibiting the document under Rule 4 can arise only if the document is found
to be admissible in evidence — In case it is found to be not admissible, the same is to be
rejected in terms of Rule 6 of Order XIII read with para 524 of Civil Manual.
(Para 61)
(h) Civil Procedure Code, O. 7, R. 14 and O. 8, R. 1 — This is a first opportunity in the lis to
the plaintiff to produce document on record — At the stage of filing written statement defendant
can admit or deny the documents filed by the plaintiff — This is a first opportunity to the
defendant to deny or admit the documents.
(Para 65)
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Page: 887

(i) Civil Procedure Code, O. 12, RR. 2 and 2-A — Parties can produce documentary evidence
at or before settlement of issues — This is an additional stage to admit or deny or object to the
admissibility of the document — Rule 2-A thereof provides for deemed admission, if documents
are not denied within stipulated time-frame after service of notice to admit documents.
(Para 66)
(j) Civil Procedure Code, O. 12, RR. 2 and 2-A — Admissibility of evidence — Objection as to
— A ruling as regards admissibility of evidence should be as brief as possible since no appeal lies
against such order, it not being a ‘judgment’.
(Para 79)
(k) Civil Procedure Code, O. 18, R. 4 — Admissibility or relevancy of evidence contained in the
affidavit filed under Order 18, Rule 4 — Objection in respect of — Need not be decided as they
arise — Can be deferred to a latter stage of the suit but before the Court proceeds to judgment.
(2004) 1 SCC 702, Rel.
(Paras 90 to 92)
(l) Code of Civil Procedure — Scope and object — Code of Civil Procedure is a procedural law
— It is “procedure”, something designed to facilitate justice and further its ends : not a penal
enactment for punishment and penalties; not a thing designed to trip people up — Too technical
a construction of sections that leaves no room for reasonable elasticity of interpretation should
therefore be guarded against (provided always that justice is to “both” sides) lest the very
means designed for the furtherance of justice be used to frustrate it.
(Para 52)
In W.P. No. 623 of 2005:
For Petitioner : P.S. Parikh with Smt. Sujata Mahadgat
For Respondent : N.Y. Gupte
In W.P. No. 1902 of 2005:
For Petitioner : H.M. Advani
For Respondent Nos. 1 and 3 : S.G. Aney, Senior Counsel with S.V. Mhatre
For Respondent No. 4 : R.M. Patne, A.G.P. In Admiralty Suit No. 31 of 1995:
For Plaintiff : A.M. Vernekar
For Defendant : V.C. Kotwal
In Suit No. 3681 of 1996:
For Plaintiff : A.C. Sampat
In Test. Suit No. 19 of 1999:
For Plaintiff : V.R. Dhond instructed by Federal and Rashmikant
For Defendant : Zal Andhyarujina instructed by Ms. R. Kantawala

List of cases referred:

1. Durgashankar v. Babubhai, 2003 (2) Mh.L.J. 576 (Paras 7, 11, 46)

2. Bharat R. Desai v. Naina M. Bhal, 2004 (2) Mh.L.J. 901 : 2004 (2) (Paras 7, 11, 46)
Bom.C.R. 695

3. Boman P. Irani v. Manilal P. Gala, 2004 (2) Mh.L.J. 128 : AIR 2004 (Paras 8, 19, 21, 82)
Bom. 123
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4. Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1 : AIR (Paras 8, 17, 19, 21, 48, 72, 82,
2001 SC 1158 83, 84, 86)

5. State v. Navjot Sandhu, (2003) 6 SCC 641 (Paras 8, 18, 49, 82, 84)

Page: 888

6. Oil and Natural Gas Corporation Ltd. v. FPU Tahara, Notice of (Paras 8, 19)
Motion No. 1609 of 2005 in Admiralty Suit No. 54 of 1999 decided
on 24-6-2005

(Paras 12, 41, 43, 80, 83, 84, 86)

7. R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and
V.P. Temple, (2003) 8 SCC 752

8. Jadu Rai v. Bhubotaran Nandy, 16 Indian Appeals 148 : 17 Cal (Para 37)
173/186

9. A. Devasikamani Goundar v. Andamuthu Goundar, (1955) 1 (Para 38)

Madras Law Journal 457

10. N.S. Sastri v. N. Lakshmidevamma, AIR 1957 A.P. 60 (Para 38)

11. Gopal Das v. Sri Thakurji, AIR 1943 PC 83 (Paras 39, 43, 81)

12. Zaver Chand v. Pukhraj Surana, AIR 1961 SC 1655 (Paras 40, 72)

13. Ram Ratan v. Bajarang Lal, (1978) 3 SCC 236 : AIR 1978 SC (Paras 42, 73)
1393

14. Smt. Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107 : AIR 2004 (Paras 43, 81, 83, 84, 86)
SC 4082

15. Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 (Para 43)

16. Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC (Para 44)
562 : AIR 1971 SC 1865

17. Ramanuj Rai v. Dakshineshwar Rai, AIR 1926 Cal. 752 (Para 45)

18. Ameer Trading Corpn. Ltd v. Shapoorji Data Processing Ltd., (Paras 50, 70, 90)
(2004) 1 SCC 702
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19. Salem Advocate Bar Association's case (2003) 1 SCC 49 : AIR (Para 50)
2003 SC 189

20. Salem Advocate Bar Association's case, (2005) 6 SCC 344 : AIR (Para 50)
2005 SC 3353

21. Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774 (Paras 54, 70)

22. Blyth v. Blyth, 1966 (1) All E.R. 524 (HL) (Para 55)

23. Shreenath v. Rajesh, (1998) 4 SCC 543 : AIR 1998 SC 1827 (Para 55)

24. R.N. Jadi and Brothers v. Subhashchandra, (2007) 6 SCC 420 : (Para 56)
AIR 2007 SC 2571

25. F.D.C. Ltd. v. Federation of Medical Representatives Association (Paras 69, 70)
India, 2003 (3) Mh.L.J. 327 : AIR 2003 Bombay 371

26. Ram Janki Devi v. Juggilal Kamlapat, (1971) 1 SCC 477 (Para 75)

27. Padman v. Hanwanta, AIR 1915 PC 111 (Para 80)

28. P.C. Purushothama Reddiar v. S. Perumal, (1972) 1 SCC 9 (Paras 80, 83, 86)

29. Nazir Ahmed v. King Emperor, AIR 1936 PC 243 (Para 84)

30. State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 (Para 84)

31. Vanmala S. Aney v. National Education Society, Khamgaon, 1982 (Para 84)
Mh.L.J. 403

32. Mishri Lal v. Dhirendra Nath, (1999) 4 SCC 11 (Para 85, 86)

33. Maktul v. Manbhari, AIR 1958 SC 918 (Para 85)

34. Miller v. Madhodas, 23 Ind App 106 (PC). (Para 91)

35. Narhari v. Ambabai, AIR 1920 Bom 244 (Para 91)

The Judgment of the Court was delivered by

VIJAY C. DAGA, J.:— The question presented in these cases require us to resolve two
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conflicting lines of precedents on the one hand, as the Court stress that “it is necessary for
Court to decide about admissibility of documents before they are exhibited in evidence”.
On the other, some of the learned Judges of this Court have no less categorically said that
admissibility of evidence and proof of document should be reserved until judgment in the
case is given.

Page: 889

Contextual Facts:
2. It is not necessary to sketch the detailed contextual facts of all cases placed before
us. Suffice it to refer two sets of precedents reflecting conflicting opinions giving rise to
the present reference.
3. In Writ Petition No. 1902/05, the petitioners, who are original defendants, have
objected to the order dated 12th January, 2005 by which the learned trial Judge has
marked 126 documents as exhibits with the following directions:
“All the documents relied upon by the plaintiffs in the list of documents from Sr. No. 1
to 126 are marked as Exhibits subject to production and proof thereof, under the
Evidence Act.”
4. The above order has been made in respect of the documents tendered along with
affidavit of evidence filed by the respondents (original plaintiffs). The admissibility has
been objected by the petitioners (original defendants). It was the principal contention of
the learned counsel for the petitioners that the objection to the admissibility of these
documents which were mainly books which refer to religious practice of a particular sect,
are so voluminous that it is not possible for the petitioners to determine which document
should be made subject of cross-examination and which may not, having regard to the
fact, the Court has exhibited the said documents tentatively subject to proof.
5. The learned counsel for the petitioners submitted before the learned single Judge
that the cross-examination as regards all documents would be fruitless, in case it is
eventually held that the documents are inadmissible. Therefore, the submission of the
learned counsel was that it was imperative and also in accordance with the procedure
prescribed by law that the admissibility of these documents ought be decided at the stage
at which the objection to their being exhibited is taken.
6. In the another writ petition, being Writ Petition No. 623 of 2005, the petitioner is a
defendant. He has been sued for damages in respect of certain allegedly defamatory
statements. The petitioner therein has objected to the admissibility and relevance of the
evidence tendered by the respondent in the examination-in-chief by way of affidavit under
Order XVIII, Rule 4 of the Code of Civil Procedure (“C.P.C.” for short). The trial Court ruled
that the question whether or not a particular statement is relevant or admissible cannot be
gone into before cross-examination of the witness and can be considered finally at a later
stage.
7. Being aggrieved by the above order, the petitioner invoked writ jurisdiction of the
learned Single Judge and pressed into service the grounds similar to those in Writ Petition
No. 1902/2005. According to the learned counsel, pending decision as to the admissibility
and relevance of the statements in the affidavit of evidence, it was difficult for the
petitioner (original defendant) to decide whether to cross-examine the witness as to those
statements, which were objected to as inadmissible.
8. One view, relied upon by the learned counsel for the petitioners in the above
petitions was as reflected in two decisions of the learned single Judges of this Court, one
rendered by Shri R.M.S. Khandeparkar, J. (as he then was) in

Page: 890
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Durgashankar v. Babubhai, 2003 (2) Mh. L.J. 576 and the other rendered by Dr. D.Y.
Chandrachud, J. in Bharat R. Desai v. Naina M. Bhal, 2004 (2) Mh. L.J. 901 : 2004 (2)
Bom. C.R. 695. In these cases, having regard to the provisions of Order XIII and Order
XVIII of Civil Procedure Code the two learned single Judges have held that while allowing
the parties to lead evidence in the form of affidavits, if objected to, the admissibility of
documents must be decided by the Court before the documents are exhibited in evidence
and that decision cannot be postponed to a later stage such as the final disposal of the
case. These judgments relied upon the judgments of the Supreme Court referred to
therein.

9. The other view relied upon by the learned counsel for the respondents in both these
petitions was as reflected in the decisions of a learned single Judge of this Court in Boman
P. Irani v. Manilal P. Gala, 2004 (2) Mh. L.J. 128 : AIR 2004 Bom. 123 decided by Shri S.J.
Vazifdar, J. wherein the learned single Judge relied upon the observation of the Supreme
Court in Bipin Shantilal Panchal v. State of Gujarat, (2001) 3 SCC 1 : AIR 2001 SC 1158,
reiterated in another judgment in the case of State v. Navjot Sandhu, (2003) 6 SCC 641]
wherein the Court was pleased to hold that the documents in question may be taken on
record and marked as exhibits tentatively subject to the objections raised by the
defendants for decision at the last stage in the final judgment on the preliminary issue. A
similar view, albeit in relation to the evidence recorded by a Commissioner has been
expressed by another single Judge, Shri S.U. Kamdar, J. (as he then was), in Oil and
Natural Gas Corporation Ltd. v. FPU Tahara, Notice of Motion No. 1609 of 2005 in
Admiralty Suit No. 54 of 1999 decided on 24-6-2005 (unreported).
10. Having regard to the conflicting views of the learned single Judges of this Court and
having regard to the importance of question, learned single Judge of this Court (Shri S.A.
Bobde, J.) found it necessary to refer the following question for decision by a larger bench
in accordance with Rule 7 of Chapter I of the Bombay High Court (Appellate Side) Rules.
“Whether objections as to the admissibility or mode of proof of evidence, oral and
documentary, should be decided upon when raised or whether decisions thereon can be
deferred to a later stage?”
11. Before turning to the question referred, it is necessary to recapitulate the rival
submissions canvased before us.
Rival Submissions:
12. Mr. D.S. Parikh, learned senior counsel appearing with Mrs. Sujata Mahadgad for
the petitioner (in W.P. No. 623/05) in his well search submissions reiterated the view
taken by the learned single Judges in the cases of Durgashankar (supra) and Bharat R.
Desai (supra) and urged that the provisions of Order XIII of Civil Procedure Code and the
Civil Manual are indicative of the legal position that the objection to the admissibility,
relevancy or proof of documents produced in evidence should be decided at the time when
such documents are tendered in evidence and should not be left for decision at the stage
of final arguments in the suit.
13. Mr. Parikh submitted that the Supreme Court has held in the case of R.V.E.
Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple,

Page: 891

(2003) 8 SCC 752 that under Order XIII, Rule 4 of Civil Procedure Code every document
admitted in evidence in the suit has to be endorsed by the Court, which endorsement
required to be signed or initialled by the Judge amounts to admission of the document in
evidence. That an objection to the admissibility of the document should be raised before
such endorsement is made and the Court is obliged to form its opinion on the question of
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admissibility and express the same on which opinion would depend the document being
endorsed as admitted or not admitted in the evidence.

14. Mr. Parikh while canvassing the effect of Order XVIII, Rule 4 of Civil Procedure Code
submitted that juxtaposition and the context of the proviso of sub-rule (1) of Rule 4 of
Order XVIII indicates that the question of admissibility and proof of the documents filed
along with the affidavit of examination-in-chief should be decided by the Court, when the
affidavit of examination-in-chief is taken on record by the Court. While placing reliance on
proviso to sub-rule (4), he submits that the said sub-rule is also indicative of the two
stages at which the admissibility, relevancy and proof of documents have to be
considered, viz.; (i) the stage when documents are tendered or produced with the affidavit
of examination-in-chief of a witness, and (ii) the stage when documents are tendered or
produced in the course of cross-examination and re-examination of a witness. According to
him, the proviso to sub-rule (1) of Rule 4 lays down that proof and admissibility of
documents filed by a witness along with his affidavit of examination-in-chief shall be
decided by the Court, before the next step is taken that of appointment of the
Commissioner by the Court for recording the cross-examination and re-examination of the
witness. In his submission, after the Commissioner records the cross-examination and re-
examination of the witness, including the objections raised by either party during the
course of such examination, the Commissioner submits his report to the Court. Such
objections have to be decided by the Court “at the stage of arguments” as provided in the
proviso to Order XVIII, Rule 4(4) of Civil Procedure Code.
15. Mr. Parikh, after having described the role of provision of Order XVIII, Rule 4 of
Civil Procedure Code, went on to reiterate that it is a settled principle of law that question
of admissibility should be decided then and there. He pressed into service the views
expressed by Wardroof and Amirali in Law of Evidence 17th Edition (Volume 1 Page 674)
to buttress his submissions.
16. Mr. Parikh also referred to some of the judgments of the Privy Council, the Hon'ble
Supreme Court and various High Courts including this Court in support of his submission,
the detailed reference of which at this stage is not necessary since reference to them is
being made in the later part of this judgment.
17. Mr. V.C. Kotwal, learned counsel urged that exclusion of evidence at the stage when
the objection is raised would not only save time but expedite disposal of the suits or
proceedings. He submits that if the decision on the objection as to admissibility or mode
of proof of documentary evidence and relevancy of oral and documentary evidence is
allowed to be postponed to stage of judgment then in that event public policy would
clearly be flouted.
18. Mr. Kotwal in support of his submission pressed into service various provisions of
the Indian Evidence Act and tried to cull out legislative intent leading to public policy.
According to him, the Parliament in its wisdom has

Page: 892

quite specifically refrained from making any changes in the Evidence Act and in particular
the sections thereof which on a correct interpretation require that evidence of the type
mentioned in sections 4, 5, 21, 66, 91, 92, 93 and 123 of the Evidence Act is required to
be excluded and are not allowed to be given or brought on record. He further submits that
even the Law Commission in its 157th report did not recommend any change in law of
evidence. Significantly, the Commission has not even referred to the case of Bipin
Shantilal Panchal (supra) in its report. In his submission, judgment of the Apex Court in
the case of Bipin Shantilal Panchal (supra) does not take into account public policy of
excluding evidence which is irrelevant and inadmissible. He, thus, supported the
submission canvassed by Mr. Parikh.
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19. The aforesaid submission canvassed by Mr. Parikh and Mr. Kotwal are supported by
V.R. Dhond and M.H. Advani.
Per Contra:
20. Mr. S.G. Aney, learned senior counsel appearing with Mr. S.V. Mhatre in his usual
persuasive manner supported the view taken by two learned single Judges of this Court in
the case of Boman P. Irani (supra) and Oil and Natural Gas Corporation Ltd. (supra),
contending that their views are based on Supreme Court judgments one in Bipin Shantilal
Panchal in State v. Navjot Sandhu (cited supra) and shall go a long way in curtailing delay
in disposal of suits.
21. In the submission of Mr. Aney, the judgment of the Apex Court in Bipin Shantilal
Panchal (supra) is by larger bench presided over by Justice K.T. Thomas and applies to
both civil as well as criminal cases. He submits that this judgment binds all subordinate
Courts including this Court.
22. Mr. Aney heavily relied upon the view taken by the learned single Judge in the case
of Boman P. Irani (supra) and went on to submit that the decision on the objection should
be postponed till the final hearing so that the trial should not be hampered. He submits
that the affidavit of evidence tendered on record should be accepted subject to objections
and the documents should also be allowed to be marked as exhibits subject to objections
to be considered at the last stage in the final judgment. According to him, his submission
is in consonance with the Statement of Objects and Reasons of the Civil Procedure Code
Amendment Act, 2002 whereby Order XVIII, Rule 4 was introduced. In his submission,
para 3(e) of the Statement of Objects and Reasons suggests that the whole object is to
reduce the delay in the trial. If the object of the amendment was to avoid delay in final
disposal, then the decision of the Supreme Court in Bipin Shantilal Panchal (supra) needs
to be applied to civil cases and the practice prescribed therein should be followed. Mr.
Aney, thus, tried to support the view leading to postponement of the decision till the final
hearing of the suit with regard to the admissibility or mode of proof of evidence or
relevancy of oral and documentary evidence tendered in the suit.
23. The aforesaid submissions canvassed by Mr. Aney are supported by Mr. N.Y. Gupte,
learned counsel appearing in the companion matter.
24. Mr. Z.T. Andhyarujina, learned counsel appearing for the defendants in
Testamentary Suit No. 19/1999 tried to carve out a middle path contending that there is
no mandate in law that the objections must be decided at a particular

Page: 893

stage. However, in his submission, generally, it is desirable that the objections must be
decided at the earliest. He submits that in some deserving cases involving complicated
questions of law, it may, however, be desirable that the decision on the objection may be
deferred to a later stage. He, thus, submits that practical approach must be adopted by
the Courts. He submits that while deciding the issue as to whether to hear objections to
evidence immediately or to defer such decision, the Courts must consider the effect of
such decision both on the party producing the evidence and other parties to the
proceeding.

25. Mr. Andhyarujina urged that the advantages of entertaining and deciding objections
at the outset are many. For instance, it enables the party producing the evidence to know
whether it will be able to prove a fact based on the evidence produced, or whether he
would be required to produce further or other evidence. It also enables the party cross-
examining the witness to know whether or not he is required to cross-examine the witness
on a particular document produced or a statement made in the affidavit of evidence. In
the event, party elects to cross-examine on such document he will no longer be entitled to
raise any objection to the same. On the other hand, if he does not cross-examine the
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witness on such document, and the document is eventually admitted into evidence, the
same would remain unrebutted. Deferring the ruling on objections also works unfairly
upon the party producing the evidence, as he has no opportunity to introduce fresh
evidence, in the event of the evidence produced being held to be inadmissible.
26. Mr. Andhyarujina, thus, submits that weight of authorities, however, suggests that
it is salutary that the objections must be decided at the earliest opportunity. In short, he
submits that it is not desirable to lay down any hard and fast rule as to at which stage the
Court should decide admissibility or mode of proof or relevancy of documentary and/or oral
evidence. He submits that it should be left to the discretion of the Judge trying the suit.
27. Before embarking upon the rival contentions of the parties, we may notice relevant
statutory provisions.
Relevant Statutory Provisions:
28. In order to understand and appreciate this question referred; and to come to the
conclusion as to what proper answer should be to this question, few relevant statutory
provisions of Civil Procedure Code, Civil Manual need to be noticed at the outset.
Civil Procedure Code:
29. Rule 3 of Order XIII of Civil Procedure Code provides that
“The Court may at any stage of the suit reject any document which it considers
irrelevant or otherwise inadmissible, recording the grounds of such rejection. Rules 4
and 6 of Order XIII which are very much relevant for the decision in the matter read
thus:
“4. Endorsement on documents admitted in evidence. — (1) Subject to the provisions
of the next following sub-rule, there shall be endorsed on every document which has
been admitted in evidence in the suit the following particulars, namely:—
(a) the number and title of the suit,
(b) the name of the person producing the document,

Page: 894

(c) the date on which it was produced, and

(d) a statement of its having been so admitted;
and the endorsement shall be signed or initialled by the Judge.
(2) Where a document so admitted is an entry in a book, account or record, and a copy
thereof has been substituted for the original under the next following rule, the
particulars aforesaid shall be endorsed on the copy of the endorsement thereon shall be
signed or initialled by the Judge.
Provided that in proceedings in the Bombay City Civil Court, the endorsement may be
signed or initialled by such officer as the Principal Judge may authorise in this behalf.
Or, in the case of a High Court, by an officer in Court under the order of the Judge or
one of the Judges.
Provided that where the Court is satisfied that the document, not endorsed in the
manner laid down in the above rule, was in fact, admitted in evidence, it shall treat the
document as having been properly admitted in evidence unless non-compliance with
this rule has resulted in miscarriage of justice.
6. Endorsements on documents rejected as inadmissible in evidence. — Where a
document relied on as evidence by either party is considered by the Court to be
inadmissible in evidence, there shall be endorsed thereon the particulars mentioned in
clauses (a), (b) and (c) of Rule 4, sub-rule (1), together with a statement of its having
been rejected, and the endorsement shall be signed or initialled by the Judge.
Provided that in proceedings filed in the Bombay City Civil Court the endorsement may
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be signed by such officer as the Principal Judge may authorise in this behalf.
Order XVIII, Rule 4 of Civil Procedure Code is also one of the relevant provisions for
deciding the question referred. Dissection of the said provision would show—
(1.1) that sub-rule (1) of Rule 4 provides that the examination-in-chief of a witness
shall be on affidavit. The proviso thereto provides that where documents are filed
or relied upon by the parties, the proof and admissibility of such documents shall
be subject to the orders of the Court.
(1.2) Sub-rule (2) of Rule 4 provides that the evidence by way of cross-examination
and re-examination of the witness shall be recorded by the Court or by the
Commissioner appointed by the Court.
(1.3) Sub-rule (4) thereof provides that the Commissioner may record remarks as to
the demeanour of the witness under examination. The proviso thereto lays down
that any objections raised during the recording of evidence before the
Commissioner shall be recorded by him and decided by the Court at the stage of
arguments.
(1.4) Sub-rule (5) thereof provides that the report of the Commissioner shall be
submitted to the Court appointing the commission.
(1.5) Sub-rule (6) thereof provides for preparation of panel of Commissioners to
record the evidence under this rule.

Page: 895

(1.6) Sub-rule (7) thereof provides for fixation of remuneration for the services of the
Commissioner.
(1.7) Sub-rule (8) thereof provides that provision of Rules 16, 16-A, 17 and 18 of
Order 26 shall apply to the issue, execution and return of such commission under
Order 18, Rule 4.
(1.8) Order 26, Rule 16-A provides for the procedure to be followed by the
Commissioner when the question put to a witness is objected by his pleader.
30. Bombay Civil Manual:
The other relevant provisions of Civil Manual are:
(2.2) The Bombay Civil Manual also makes provision for production and marking of
documents as Exhibits. Chapter 27 thereof contains the following provisions:
Paragraph 552(1). All documents tendered in evidence shall be accompanied by a list in
the form given as Nos. 5 in Appendix of the First Schedule of the Code of Civil
Procedure.
Paragraph 523(1). As soon as the list is filed, the Bench Clerk should endorse on the
back of each document the particulars mentioned in clauses (a), (b) and (c) of Rule 4
(1), Order 13, Civil Procedure Code.
Paragraph 524. If a document included in the list is referred to in the proceedings
before it is tendered in evidence and formally proved, it should be immediately marked
for identification. When it is tendered in evidence it should be detached from the list. If
rejected, it should be endorsed as prescribed by Order 13, Rule 6, Civil Procedure Code,
and returned. If admitted, the endorsement referred to in the above Rule should be
completed and signed by the Judge (Order 13, Rule 4, Civil Procedure Code) and the
document should be assigned the appropriate exhibit number and filed in the record
and all references to it in the depositions and judgment should bear that number. Every
document should be further marked with the letter “P” or “D”, according as it is
tendered by the plaintiff or the defendant. The number assigned to each document
should be endorsed on the list of documents mentioned above.
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31. Effects of the Amending Act of 2002:

32. Having said so, in order to answer the question referred, it is also necessary to
examine what is the effect of amendment made by the Code of Civil Procedure
(Amendment) Act, 2002 whereby Order XVIII, Rule 4 has been amended. Before the
aforesaid provision of amended Rule 4 of Order XVIII is taken into consideration, it will be
necessary to consider the brief background which resulted in amendment of the said Rule
4 of Order XVIII.
33. In view of the concern expressed from various quarters over the pending arrears
and need to manage the explosion of dockets, suggestions were invited from Committees
which were constituted to tackle this problem. Various Committees were formed from time
to time which have given their recommendations for curtailing the arrears of pending
cases. Sharadchandra Committee as also Malimath Committee's report submitted in 1989-
1990 had given various reasons and had made various categories of causes, which were
responsible for causing delay in disposal of cases in trial Courts and other Courts. It was
stated in the report that maximum time of the trial Court was taken in

Page: 896

recording of evidence and it was felt that if this work of recording of evidence was given to
some other agency, the Court could find more time for disposal of interlocutory
applications and for final disposal of cases.

34. In 163rd report of Law Commission of India on the Code of Civil Procedure
(Amendment) Bill, 1997 in Chapter-II under the heading “Recommendations and
Conclusions Regarding the Code of Civil Procedure (Amendment) Bill, 1997”, it is stated in
para 2.3(e) as under:—
“2.3 The Amendment Bill seeks to make some of the following important changes in the
Code of Civil Procedure, 1908 (as indicated in the Statement of Objects and Reasons
annexed with the Bill):—
(a) ….. ….. …..
(b) ….. ….. …..
(c) ….. ….. …..
(d) ….. ….. …..
(e) As maximum time is consumed by the Courts in recording oral evidence which
causes delay in disposal of cases, it is proposed to reduce such delay by making
provisions for filing of examination-in-chief of every witness in the form of an
affidavit. For the cross-examination and re-examination of witnesses, it is
proposed that it shall be recorded by a commissioner to be appointed by the Court
and the evidence recorded by a Commissioner shall become part of record of the
suit;
(f) ….. ….. …..
(g) ….. ….. …..
(h) ….. ….. …..
(i) ….. ….. …..
(j) ….. ….. …..
3. ….. ….. …..”
35. It was, therefore, felt that the Commissioner who was empowered to record
statements of witnesses under Order XXVI under certain exceptional circumstances,
should be given the power to exclusively record the evidence of witnesses. This was taken
into consideration in the Bill which was submitted in 1997 and, accordingly, the Code of
Civil Procedure (Amendment) Act, 1999 was passed and section 27 of the said
Amendment Act of 1999 brought the amendment in Order XVIII, Rule 4.
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36. This amendment was not given effect to since protest was raised by the members
of the Bar throughout the country and, subsequently, the Code of Civil Procedure
(Amendment) Act, 2002 was brought into force on 1st July, 2002 and Order XVIII, Rule 4
was amended by virtue of the Code of Civil Procedure (Amendment) Act, 2002, section 12
(b). In Order to examine the effect and purpose of the amendment which was made in
2002, it may be necessary to briefly examine the Code of Civil Procedure (Amendment)
Act, 1999 so that the intention of the Legislature can be ascertained by the amendment
which was brought into force in 2002 by the Code of Civil Procedure (Amendment) Act of
2002. The Code of Civil Procedure (Amendment) Act, 1999, by Section 27, amended Order
XVIII, Rule 4 in the following manner.

Page: 897

“27. In the First Schedule, in Order XVIII,—

(i) sub-rule (4) of Rule 2 shall be omitted;
(ii) for rule 4, the following rule shall be substituted, namely:—
“4. (1) In every case, the evidence of a witness of his examination-in-chief shall be
given by affidavit and copies thereof shall be supplied to the opposite party by the
party who calls him for evidence.
(2) The evidence (cross-examination and re-examination) of the witness in attendance,
whose evidence (examination-in-chief) by affidavit has been furnished to the Court
shall be taken orally by a commissioner to be appointed by the Court from amongst the
panel of commissioners prepared for this purpose on the same day:
Provided that, in the interest of justice and for reasons to be recorded in writing, the
Court may direct that the evidence of any witness shall be recorded by the Court in the
presence and under the personal direction and superintendence of the Judge.
(3) The commissioner shall be paid such sum for recording of evidence as may be
prescribed by the High Court.
(4) The amount payable to the commissioner under sub-rule (3) shall be paid by the
Court or by the parties summoning the witness as may be prescribed by the High
Court.
(5) The District Judge shall prepare a panel of commissioners to record the evidence
under this rule.
(6) The commissioner shall record evidence either in writing or mechanically in his
presence and shall make a memorandum which shall be signed by him and the witness
and submit the same to the Court appointing such commissioner.
(7) Where any question put to a witness is objected by a party or his pleader and the
commissioner allows the same to be put, the commissioner shall take down the
question together with his decision.
(iii) Rule 17A shall be omitted;
(iv) after Rule 18, the following rule shall be inserted, namely:—
“19. Notwithstanding anything contained in these rules, the Court may, instead of
examining witnesses in open Court, direct their statements to be recorded on
commission under Rule 4A of Order XXVI.”
37. This amendment was not brought into force and, subsequently, the Code of Civil
Procedure (Amendment) Act, 2002 was passed whereby by section 12(b), Order XVIII,
Rule 4 was amended in the following manner.
“12. In the First Schedule, in Order XVIII,—
(a) ….. ….. …..
(b) for Rule 4 [as substituted by clause (ii) of section 27 of the Code of Civil
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Procedure (Amendment) Act, 1999], the following rule shall be substituted,

namely:—
“4. (1) In every case, the examination-in-chief of a witness shall be on affidavit and
copies thereof shall be supplied to the opposite party by the party who calls him for
evidence:

Page: 898

Provided that where documents are filed and the parties rely upon the documents, the
proof and admissibility of such documents which are filed along with affidavit shall be
subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance,
whose evidence (examination-in-chief) by affidavit has been furnished to the Court
shall be taken either by the Court or by the Commissioner appointed by it:
Provided that the Court may, while appointing a commission under this sub-rule,
consider taking into account such relevant factors as it thinks fit:
(3) The Court or the Commissioner, as the case may be, shall record evidence either in
writing or mechanically in the presence of the Judge or of the Commissioner, as the
case may be, and where such evidence is recorded by the Commissioner, he shall
return such evidence together with his report in writing signed by him to the Court
appointing him and the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the
demeanour of any witness while under examination : Provided that any objection raised
during the recording of evidence before the Commissioner shall be recorded by him and
decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the
commission within sixty days from the date of issue of the commission unless the Court
for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of
Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as
remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, insofar as they are
applicable, shall apply to the issue, execution and return of such commission under this
rule.”
(Emphasis supplied)
38. From the perusal of the amendment which was sought to be introduced in 1999
and the actual amendment which was brought into force in 2002, it can be noticed that
several changes were made in the amendment which was proposed in 1999. Firstly, it can
be seen that after Order XVIII, Rule 4(1), a proviso has been incorporated which was not
there in the earlier amendment and the proviso also has been added to Order XVIII, Rule
4 sub-clause (4). The aforesaid first proviso to Rule 4(1) and the second proviso to Rule 4
(4) clearly reveals the intention of the Legislature. Whereas, in the earlier amendment of
1999, the intention of the Legislature was to delegate the work of recording of evidence
entirely to the Commissioner who would be appointed for the purpose of recording of
evidence. The Code of Civil Procedure (Amendment) Act, 2002 makes a departure and
gives discretion to the Court to either record the cross-examination itself or depute that
work to the Court Commissioner. At the same time, proviso to sub-rule (1) of Rule 4
clearly indicates that the Court alone is empowered to decide the question of proof and
admissibility of documents.
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Whereas, so far as objection raised during recording of evidence before the Commissioner
is concerned, proviso to sub-rule (4) of Rule 4 clearly stipulates that the said objection
could be determined by the Court at the time of final hearing of the case. The present
amendment brought about by the Code of Civil Procedure (Amendment) Act, 2002,
therefore clearly tries to reconcile the earlier position and vests a discretion in the Court of
deciding the question of admissibility of documents before the case is sent to the
Commissioner for recording the cross-examination. The purpose and intention of the
Legislature, therefore, is very clear. It is apparent that after having noticed that large time
of the Court is taken in recording oral evidence of the witnesses, it was thought fit to
delegate this work to the Commissioner by expanding the powers of the Commissioner
which are given under Order XXVI and further amendment to Order XIX, Rules 1 and 2
gives ample power to the Commissioner to record the evidence. At the same time, since
the Commissioner is not competent to decide the question of proof and admissibility of
documents and evidence, discretion is given to the Court, either to decide this issue before
sending the matter to the Commissioner for recording of cross-examination or decide this
issue after the report is submitted by the Commissioner. It will have to be noted here that
if the objects and reasons of the Code of Civil Procedure (Amendment) Act are noticed, it
can be seen that the entire procedure prescribed for hearing and disposal of the suits has
been overhauled and, therefore, the Commissioner is supposed to give a report within a
period of sixty days and the period for extension of time which is to be given to the
Commissioner has to be by recording reasons by the Court.

39. Apart from the amendment which is made to Order XVIII, Rule 4, it is also
necessary to take into consideration the effect of other amendments which have been
made to the provisions of the Code of Civil Procedure by the Code of Civil Procedure
(Amendment) Act, 2002. The first amendment is in respect of Order VII, Rule 14 wherein
it is provided that the plaintiff shall produce documents which are in his possession in
support of his claim along with the plaint and also state which document is not in his
possession and further state, where possible, in whose possession and power it is. Sub-
clause (3) provides that any document which ought to have been produced by the plaintiff
along with the plaint is not so produced then it shall not be permitted without the leave of
the Court to be received in evidence at the hearing of the suit. Similar amendment was
made in the provisions of Order VIII, Rule 1-A which is a provision regarding filing of
Written Statement by the defendant. In order to give effect to these amendments
consequential amendments have been made. Consequently, Order XIII, Rule 1 has been
amended. Order XVIII, Rule 19 states that the Court may, instead of examining the
witnesses in open Court, direct that their statements may be recorded on commission
under Rule 4-A of Order XXVI. Order XXVI, Rule 4-A states that the Court may direct the
Commissioner to record the evidence of any person resident within the local limits of its
jurisdiction.
40. All the aforesaid provisions have been inserted in order to ensure that there is a
quick disposal of the cases. The documents, therefore, are to be produced by the plaintiff
and by the defendant along with the plaint or written

Page: 900

statement. The original documents are to be produced before the settlement of issues
under Order XIII. Notice to admit documents is to be given under Order XII and under
Rule 2-A of Order XII, the document is deemed to be admitted if not denied after service
of notice to admit documents. Under Order XIII, Rule 3, the Court has a power to reject
the irrelevant or inadmissible documents.
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The Questions for Determination:

41. Having heard various learned counsel appearing for the parties, we propose to
answer the question, after taking review of the law holding the field but slightly amending
and splitting it in two parts for the sake of convenience to answer. The question, as
reframed/amended, will read as under:—
Question-A.
At which stage, the objection to the admissibility and/or proof of document which may
be produced or tendered should be raised; considered and decided by the Court?
Question-B.
At which stage, an objection to the admissibility or relevancy of evidence contained in
the affidavit filed under Order XVIII, Rule 4 of Civil Procedure Code should be
considered and decided by the Court?
The Rulings/Authorities:
42. In order to understand and appreciate the reframed questions and to come to a
conclusion as to what the proper answers to the questions should be, it is necessary to
look at some of the relevant judgments holding field.
43. One of the oldest judgment of the Privy Council in the field is in the case of Jadu
Rai v. Bhubotaran Nandy, 16 Indian Appeals 148 : 17 Cal 173/186; wherein it is observed
as under:
“I would further add, that I think the practice of admitting evidence and reserving the
question of its admissibility for further consideration, is unwise and much to be
regretted. If the evidence is once admitted, it is impossible to say what its effect may
be on the mind of the person who hears it; and I think it most [187] desirable that the
question of admissibility should be finally decided when the objection to questions is
taken.”
44. The above view has been followed in several cases by various High Courts including
High Courts of Madras and Andhra Pradesh, [see (1955) 1 Madras Law Journal 457, A.
Devasikamani Goundar v. Andamuthu Goundar and AIR 1957 A.P. 60, N.S. Sastri v. N.
Lakshmidevamma).
45. The Privy Council in another judgment in the case of Gopal Das v. Sri Thakurji, AIR
1943 PC 83 held that the objection to the mode of proof must be taken before document is
marked and not in appeal for first time. Where the objection to be taken is not that the
document is in itself inadmissible but that the mode of proof put forward is irregular or
insufficient, it is essential that the objection should be taken at the trial before the
document is marked as an exhibit and admitted to the record. A party cannot lie by until
the case comes before a Court of appeal and then complain for the first time of the mode
of proof.
46. In Zaver Chand v. Pukhraj Surana, AIR 1961 SC 1655, a document was tendered
which was not properly stamped. Objection was raised as to

Page: 901

admissibility thereof. The Court held that the question has to be decided there and then
when the document is tendered in evidence. It was further held that once the Court rightly
or wrongly decides to admit the document in evidence, the matter is closed so far as the
parties are concerned. It was held that the Court has to determine the matter judicially as
soon as the document is tendered in evidence and before it is marked as an Exhibit in the
case.

47. In the case of R.V.E. Venkatachalam Gounder (supra), the Apex Court ruled as
under:
“The objections as to admissibility of documents in evidence may be classified into two
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classes : (i) an objection that the document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the objection does not dispute the
admissibility of the document in evidence but is directed towards the mode of proof
alleging the same to be irregular or insufficient. In the first case, merely because a
document has been marked as “an exhibit”, an objection as to its admissibility is not
excluded and is available to be raised even at a later stage or even in appeal or
revision. In the latter case, the objection should be taken when the evidence is
tendered and once the document has been admitted in evidence and marked as an
exhibit, the objection that it should not have been admitted in evidence or that the
mode adopted for proving the document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as an exhibit. The latter
proposition is a rule of fair play. The crucial test is whether an objection, if taken at the
appropriate point of time, would have enable the party tendering the evidence to cure
the defect and resort to such mode of proof as would be regular.”
48. In the case of Ram Ratan v. Bajarang Lal, (1978) 3 SCC 236 : AIR 1978 SC 1393,
the Supreme Court observed as under:
“The Court, and of necessity it would be trial Court before which the objection is taken
about admissibility of document on the ground that it is not duly stamped, has to
judicially determine the matter as soon as the document is tendered in evidence and
before it is marked as an exhibit in the case and where a document has been
inadvertently admitted without the Court applying its mind as to the question of
admissibility, the instrument could be said to have been admitted in evidence with a
view to attracting section 36.”
49. In the case of Smt. Dayamathi Bai v. K.M. Shaffi, (2004) 7 SCC 107 : AIR 2004 SC
4082, the Apex Court following its earlier view in R.V.E. Venkatachalam Gounder (supra),
Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 and Gopal Das v. Sri
Thakurji (supra) reiterated that the objection to be taken at trial before document is
marked as an ‘exhibit’ and admitted to record. In the said judgment, the Supreme Court
also referred to Sarkar on Evidence 15th Edition, page 1084; wherein it is stated that if
copies of the documents are admitted without objection in the trial Court, no objection to
their admissibility can be taken afterwards in the Court of Appeal.

Page: 902

50. In the case of Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562 :
AIR 1971 SC 1865, the Apex Court ruled that mere marking of a document as an exhibit
does not dispense with its proof.
51. In the case of Ramanuj Rai v. Dakshineshwar Rai, AIR 1926 Cal. 752, the Court
ruled that where there is any objection to the admissibility of an evidence, a final decision
on the objection must be recorded before the Court proceeds to judgment.
52. The weight of the aforesaid authorities suggests that the objection to the
admissibility of evidence should be raised by the objector and decided by the Court at the
earliest opportunity. The same view has been reiterated by the learned single Judges of
this Court in Bharat R. Desai v. Naina M. Bhal (supra) and Durgashankar v. Babubhai
(supra).
53. We now propose to proceed to refer to the judgments of the Apex Court taking little
different view on the very same issue while dealing with the case arising out of criminal
trial.
54. In the case of Bipin Shantilal Panchal (supra) Justice Thomas speaking for the
Bench held that—
“When so recast, the practice which can be a better substitute is this : Whenever an
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objection is raised during evidence-taking stage regarding the admissibility of any

material or item of oral evidence the trial Court can make a note of such objection and
mark the objected document tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such objections to be decided at the last
stage in the final judgment. If the Court finds at the final stage that the objection so
raised is sustainable the Judge or Magistrate can keep such evidence excluded from
consideration. There is no illegality in adopting such a course. However, if the objection
relates to deficiency of stamp duty of a document the Court has to decide the objection
before proceeding further. For all other objections the procedure suggested above can
be followed.”
55. The aforesaid view finds support in another judgment of the Apex Court in the case
of State v. Navjot Sandhu (supra) arising out of criminal trial.
56. While interpreting Rule 4 of Order XVIII, the other amendments also have to be
kept in mind and over and above that, it has to be borne in mind that the intention of the
Legislature was to curtail the time consumed by the Court in the process of recording of
evidence. In Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC
702, the Apex Court while interpreting the said provision has taken into consideration
Heydon's rule. The Apex Court has made the following observations.
“21. In a situation of this nature, the doctrine of suppression of mischief rule as
adumbrated in Heydon's case, (1584) 3 Co. Rep. 7a : 76 ER 637 shall apply. Such an
amendment was made by Parliament consciously and, thus, full effect thereto must be
given.”
“22. In Halsbury's Laws of England, Vol. 44(1), 4th Reissue, para 1474, pp. 906-07, it
is stated:
“Parliament intends that an enactment shall remedy a particular mischief and it is
therefore presumed that Parliament intends that the Court, when

Page: 903

considering in relation to the facts of the instant case, which of the opposing constructions
of the enactment corresponds to its legal meaning, should find a construction which
applies the remedy provided by it in such a way as to suppress that mischief. The doctrine
originates in Heydon's case, (1584) 3 Co. Rep. 7a : 76 ER 637 where the Barons of the
Exchequer resolved that for the sure and true interpretation of all statutes in general (be
they penal or beneficial, restrictive or enlarging of the common law), for things are to be
discerned and considered:

(1) what was the common law before the making of the Act;
(2) what was the mischief and defect for which the common law did not provide;
(3) what remedy Parliament has resolved and appointed to cure the disease of the
commonwealth; and
(4) the true reason of the remedy; and then the office of all the Judges is always to
make such construction as shall:
(a) suppress the mischief and advance the remedy; and
(b) suppress subtle inventions and evasions for the continuance of the mischief
pro privato commodo (for private benefit); and
(c) add force and life to the cure and remedy according to the true intent of the
makers of the Act pro publico (for the public good).”
(Emphasis supplied)
“23. Heydon's rule has been applied by this Court in a large number of cases in order to
suppress the mischief which was intended to be remedied as against the literal rule
which could have otherwise covered the field. (See for example, Parayankandiyal
eravath kanapravan kalliani Amma v. K. Devi, (1996) 4 SCC 76 : AIR 1996 SC 1963;
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Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661 and Goodyear India Ltd.
v. State of Haryana, (1990) 2 SCC 71.”
57. At this stage, it would be appropriate to take into consideration the observations
made by the Apex Court in the case of Salem Advocate Bar Association (supra). In the
first Salem Advocate Bar Association's case reported in (2003) 1 SCC 49 : AIR 2003 SC
189, the validity of Order XVIII, Rule 4 was challenged. However, the Apex Court upheld
the validity of the said rule. In the second Salem Advocate Bar Association's case reported
in (2005) 6 SCC 344 : AIR 2005 SC 3353, the Apex Court was called upon to formulate
the modalities for implementation of section 89 of the Code of Civil Procedure. The Apex
Court, however, took into consideration the report submitted by the Committee which was
constituted for the purpose of giving proper effect to the amendments. The report was
tendered in three parts. Report-I contained the consideration of various grievances
relating to amendments to the Code and recommendations of the Committee. In para-3 of
the said judgment, the Apex Court has taken into consideration the report and in para-5 it
has taken into consideration the effect of amendment of Order XVIII, Rule 4. It would be
relevant to consider the observations made by the Apex Court in para-5 of its judgment
which is reproduced hereinbelow:—
“5. The amendment provides that in every case, the examination-in-chief of a witness
shall be on affidavit. The Court has already been vested with power to permit affidavits
to be filed as evidence as provided in Order

Page: 904

XIX, Rules 1 and 2 of the Code. It has to be kept in view that the right of cross-
examination and re-examination in open Court has not been disturbed by Order XVIII,
Rule 4 inserted by amendment. It is true that after the amendment cross-examination can
be before a Commissioner but we feel that no exception can be taken in regard to the
power of the Legislature to amend the Code and provide for the examination-in-chief to be
on affidavit or cross-examination before a Commissioner. The scope of Order XVIII, Rule 4
has been examined and its validity upheld in Salem Advocates Bar Association's case.
There is also no question of inadmissible documents being read into evidence merely on
account of such documents being given exhibit numbers in the affidavit filed by way of
examination-in-chief. Further, in Salem Advocates Bar Association's case, it has been held
that the trial Court in appropriate cases can permit the examination-in-chief to be
recorded in the Court. Proviso to sub-rule (2) of Rule 4 of Order XVIII clearly suggests
that the Court has to apply its mind to the facts of the case, nature of allegations, nature
of evidence and importance of the particular witness for determining whether the witness
shall be examined in Court or by the Commissioner appointed by it. The power under
Order XVIII, Rule 4(2) is required to be exercised with great circumspection having regard
to the facts and circumstances of the case. It is not necessary to lay down hard and fast
rules controlling the discretion of the Court to appoint Commissioner to record cross-
examination and re-examination of witnesses. The purpose would be served by noticing
some illustrative cases which would serve as broad and general guidelines for the exercise
of discretion. For instance, a case may involve complex question of title, complex question
in partition or suits relating to partnership business or suits involving serious allegations of
fraud, forgery, serious disputes as to the execution of the will etc. In such cases, as far as
possible, the Court may prefer to itself record the cross-examination of the material
witnesses. Another contention raised is that when evidence is recorded by the
Commissioner, the Court would be deprived of the benefit of watching the demeanour of
witness. That may be so but, in our view, the will of the legislature, which has by
amending the Code provided for recording evidence by the Commissioner for saving
Court's time taken for the said purpose, cannot be defeated merely on the ground that the
Court would be deprived of watching the demeanour of the witnesses. Further, as noticed
above, in some cases, which are complex in nature, the prayer for recording evidence by
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the Commissioner may be declined by the Court. It may also be noted that Order XVIII,
Rule 4, specifically provides that the Commissioner may record such remarks as it thinks
material in respect of the demeanour of any witness while under examination. The Court
would have the benefit of the observations if made by the Commissioner.”

(Emphasis supplied)
58. The Code of Civil Procedure is a procedural law. It is “procedure”, something
designed to facilitate justice and further its ends : not a penal enactment for punishment
and penalties; not a thing designed to trip people up.

Page: 905

Too technical a construction of sections that leaves no room for reasonable elasticity of
interpretation should therefore be guarded against (provided always that justice is to
“both” sides) lest the very means designed for the furtherance of justice be used to
frustrate it.

59. All the rules of procedure are the handmaid of justice. The language employed by
the draftsman of processual law may be liberal or stringent, but the fact remains that the
object of prescribing procedure is to advance the cause of justice. In an adversarial
system, no party should ordinarily be denied the opportunity of participating in the
process of justice dispensation. Unless compelled by express and specific language of the
Statute, the provisions of the Civil Procedure Code or any other procedural enactment
ought not to be construed in manner which would leave the Court helpless to meet
extraordinary situations in the ends of justice.
60. The processual law so dominates in certain systems as to overpower substantive
rights and substantial justice. The humanist rule that procedure should be the handmaid,
not the mistress, of legal justice compels consideration of vesting a residuary power in
Judges to act ex debito justitiate where the tragic sequel otherwise would be wholly
inequitable — Justice is the goal of jurisprudence processual, as much as substantive.
[See Sushil Kumar Sen v. State of Bihar, 1975 (1) SCC 774].
61. No person has a vested right in any course of procedure. He has only the right of
prosecution or defence in the manner for the time being by or for the Court in which the
case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has
no other right than to proceed according to the altered mode. [See Blyth v. Blyth, 1966
(1) All E.R. 524 (HL)]. A procedural law should not ordinarily be construed as mandatory,
the procedural law is always subservient to and is in aid to justice. Any interpretation
which eludes or frustrates the recipient of justice is not to be followed, (see Shreenath v.
Rajesh, (1998) 4 SCC 543 : AIR 1998 SC 1827).
62. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to
justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a
resistant in the administration of justice as held by the Apex Court in the recent judgment
in the case of R.N. Jadi and Brothers v. Subhashchandra, (2007) 6 SCC 420 : AIR 2007
SC 2571.
63. The Court must always be anxious to do justice and prevent victories by way of
technical knock-outs. But how far that concept can be stretched in the context of the
amendments brought to the Civil Procedure Code and in the light of the mischief that was
sought to be averted is a question that has to be seriously considered. Sometimes even
the procedure would be considered as mandatory, no doubt, retaining the power in Court
in a proper case to exercise the jurisdiction to take out the rigour of that provision or to
mitigate genuine hardship.
Consideration:
64. With the above preface, we propose to answer the questions referred hereinabove.
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Question-A.
65. The resolution of this question cannot be without considering the provisions of
Order XIII, Rule 3 which requires the Court to reject any document it considers irrelevant
or otherwise inadmissible recording grounds of such rejection. Rule 4 provides for every
document admitted in evidence in the suit being endorsed by or on behalf of the Court,
which endorsement signed or initialled by the Judge amounts to admission of the
document in evidence. Rule 6 contemplates endorsements on the documents rejected as
inadmissible in evidence. An objection to the admissibility of the document should be
raised before endorsement is made and the Court is obliged to form its opinion on the
question of admissibility and express the same on which opinion would depend the
document being endorsed as admitted or not admitted in evidence.
66. Chapter XXVII of the Civil Manual also deals with the matters pertaining to the
“RECORDS” of the Court and under the heading “DOCUMENTS” it deals with the procedure
pertaining to acceptance of documents on record and the manner in which they are to be
exhibited or rejected in the course of trial.
67. Considering the provisions of law referred to above, it is not possible to reject the
document admitted and exhibited in terms of Rule 4 in exercise of powers under Rule 6 of
Order XIII of Civil Procedure Code. A document can be exhibited in evidence only when
such a document is admissible in evidence and not otherwise. If admissible document is
exhibited on establishing its proof then such document cannot be de-exhibited or rejected.
This is abundantly clear from the provisions of law contained in Rules 4 and 6 of Order
XIII read with Para-524 of the Civil Manual. In fact, provisions of law contained in Rule 4
are to be read with Rule 6 of Order XIII of Civil Procedure Code and cannot be considered
to be referable to two different stages. The question of exhibiting the document under
Rule 4 can arise only if the document is found to be admissible in evidence and in case it
is found to be not admissible, the same is to be rejected in terms of Rule 6 of Order XIII
read with para-524 of Civil Manual. There is no provision enabling the Court to postpone
the objection regarding admissibility or proof of document, as such one can safely rule
that the question as to admissibility of document should be decided at it arises and should
not be reserved until the judgment of the case is given.
68. The various judgments of the Privy Council, the Supreme Court and various High
Courts referred to hereinabove lean in favour of determining the question as to
admissibility of document at the time of its reception or at the earliest possible
opportunity. The reason is that if the Court allows the objection, the party tendering the
evidence may take such steps as may be advised to get the lacunae remedied. Once
inadmissible evidence is admitted on record, it is impossible to say what its effect may be
on the mind of the person, who hears it. It creates atmosphere of prejudice affecting fair
trial. It may, unconsciously, be regarded by judicial minds as corroboration of some piece
of evidence legally admissible and thereby obtain for latter quite undue weight and
significance.
Stage to Raise Objection:
69. In order to prevent inadmissible evidence going on record, the opponent or adverse
party can always raise an objection to the admissibility of

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the document. The question is : at which stage such objection is to be raised? To answer
this question, let us find out various stages provided in the Code to raise an objection to
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the admissibility of the documents.

70. Order VII deals with construction of the plaint. Rule 14 thereof provides for
production of documents on which plaintiff sues along with list of other documents relied
upon in support of the claim. This is a first opportunity in the lis to the plaintiff to produce
documents on record.
71. On being served with the writ of summons, the defendant appears and files written
statement under Order VIII, Rule 1 in which defendant can admit or deny the documents
filed by the plaintiff. This is a first opportunity to the defendant to deny or admit the
documents. Rule 8-A thereof cast duty on defendant to produce documents upon which
relief is claimed by him. Rules relating to a written statement by a defendant apply to a
written statement filed in answer to a counter-claim in view of Rule 6-G of Order VIII.
72. Under Order XIII, Rule 1, one more opportunity is available to the parties to
produce documentary evidence at or before settlement of issues. Order 12, Rule 2
provides for notice to admit documents calling upon the opponent to admit documents.
This is an additional stage to admit or deny or object to the admissibility of the document.
Rule 2A thereof provides for deemed admission, if documents are not denied within
stipulated time-frame after service of notice to admit documents.
73. The procedure for rejecting or exhibiting the document which is produced in the
course of evidence is prescribed under Order XIII, Rules 3 and 4 respectively.
74. Order XVIII, Rule 4(1) of the Civil Procedure Code clearly provides that the
examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied
to the opposite party by the party who calls the witness for evidence; provided that where
documents are filed and the parties rely upon the documents, the proof and admissibility
of such documents which are filed along with the affidavit shall be subject to the orders of
the Court. At this stage, one more opportunity is provided to the party to produce
documents.
75. The procedure to lead evidence in the form of affidavit under Order XVIII, Rule 4 of
the Civil Procedure Code and to translate it into admissible evidence has been elaborately
stated in the decision of the learned single Judge of this Court in F.D.C. Ltd. v. Federation
of Medical Representatives Association India, 2003 (3) Mh. L.J. 327 : AIR 2003 Bombay
371.
76. The above judgment in the case of F.D.C. Ltd. (supra) is affirmed by the Supreme
Court in Salem Advocate Bar Association (supra) and Ameer Trading Corpn. Ltd. (supra).
It is, thus, ruled that unless deponent thereof enters the witness-box and confirms the
contents of the affidavit the same cannot be taken on record and exhibited. Once the
affidavit of evidence is taken on record and exhibited making part of the record of the
case, the opponent, at this stage, must raise an objection to the admissibility and proof of
the documents which the Court has to decide by a judicial order.
Classification of Documentary Evidence vis-a-vis
Adjudication thereon:
77. The admissibility of the document in evidence may be broadly classified into three
classes-(i) that objection to the document which is sought to

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be proved is itself insufficiently stamped and the objection relates to deficiency of stamp
duty of the document; (ii) where the objection does not dispute admissibility of document
in evidence but is directed towards the mode of proof alleging the same to be irregular or
insufficient; and (iii) the objection that the document which is sought to be proved is ab
initio inadmissible in evidence.

78. In the first case, the Court, before which the objection is taken about admissibility
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of document on the ground that it is not duly stamped, has to judicially determine the
matter as soon as the document is tendered in evidence and before it is marked as an
exhibit in the case as held by the Constitution Bench in Zaver Chand v. Pukhraj Surana
(supra). Once a document has been marked as an exhibit in the case and has been used
by the parties in examination and cross-examination of their witnesses, section 36 comes
into operation. Once a document has been admitted in evidence, as aforesaid, it is not
open either to the trial Court itself or to a Court of Appeal or Revision to go behind that
order. Such an order is not one of those judicial orders which are liable to be reviewed or
revised by the same Court or a Court of superior jurisdiction. Similar view is expressed by
the Supreme Court in the case of Bipin Shantilal Panchal (supra); wherein it is made clear
that if the objection relates to deficiency of stamp duty of a document, the Court has to
decide the objection before proceeding further.
79. In the case of Ram Ratan v. Bajarang Lal (supra) the Apex Court reiterating the
above view has observed that the Court, as of necessity it would be trial Court, before
which the objection is taken about admissibility of document on the ground that it is not
duly stamped, has to judicially determine the matter as soon as the document is tendered
in evidence and before it is marked as an exhibit in the case. So the objection relating to
deficiency of duty cannot be raised or decided at the later stage of the suit. It has to be
decided there and then unless taken on record subject to objection so as to avoid the
rigour of section 36 of the Stamp Act.
80. In the second category of the case, the objection should be taken when the
evidence is tendered. Once the document has been admitted in evidence and marked as
an exhibit, the objection that it should not be admitted in evidence or that the mode
adopted for proving the document is irregular cannot be allowed to be raised at any stage
subsequent to the marking of the document as an exhibit. This proposition is rule of fair
play. The crucial test is whether an objection, if taken at the appropriate point of time,
would enable the party tendering the evidence to cure the defect and resort to such mode
of proof as would be regular. The omission to object become fatal because by his failure
the party entitled to object allows the party tendering the evidence to act on an
assumption that the opposite party is not serious about the mode of proof. On the other
hand, a prompt objection does not prejudice the party tendering the evidence, for two
reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the
question of admissibility there and then; and secondly, in the event of finding of the Court
on the mode of proof sought to be adopted going against the party tendering the
evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode
or method of proof and thereby removing the objection raised by the opposite party, is
available to the party leading the evidence. Failure to raise a prompt and timely objection
amounts to waiver of the

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necessity for insisting on formal proof of a document, the document itself which is sought
to be proved being admissible in evidence.

81. If the objection to the proof of document is not decided and the document is taken
on record giving tentative exhibit, then the right of the cross-examiner is seriously
prejudiced. Once the document is used in cross-examination, then the document gets
proved and can be read in evidence as held by the Supreme Court in the case of Ram
Janki Devi v. Juggilal Kamlapat, 1971 (1) SCC 477. If the cross-examiner decides not to
cross-examine based on unexhibited document and, ultimately, at the fag end of the trial,
the document is held to be admissible and proved, then, the cross-examiner as a rule of
fair play would be entitled to further opportunity to cross-examine based on that
document resulting in delayed trial defeating the very object and purpose of the
amendment to the Civil Procedure Code.
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82. In the third case merely because a document has been marked as “an exhibit”, an
objection as to its admissibility is not excluded. It is available to be raised even at later
stage or even in appeal or revision. There is no question of inadmissible documents being
read into evidence merely on account of such documents being given exhibit numbers in
affidavit filed by in examination-in-chief or while recording oral evidence. For example in
case of unregistered sale-deed or gift-deed or lease-deed requiring registration, no
evidence of the terms thereof can be given. On the ground of public policy, evidence
derived from unpublished official records of the State cannot be given except with the
permission of the head of the department concerned as laid down under section 123 of the
Evidence Act. Such a document, therefore, can be tentatively exhibited and the decision
thereon can be postponed till the suit reaches the stage of judgment. However such
objection has also to be decided before the judgment is delivered. The objection to the
admissibility of such evidence can always be taken at any stage of the suit.
83. Thus, we hold and rule that ordinarily an objection to the admissibility of the
document in first and second categories of cases (excluding third type of case) has to be
taken before the document is exhibited which, necessarily, postulates decision on the
objection then and there. In other words, whether document is admissible or inadmissible
is matter which should always be ruled upon at the time when the document is being
proved or put in or the question asked to the witness. Such practice and procedure is fair
to both parties.
84. It may be observed that sometimes in the case of second category, evidence can be
received subject to objection in anticipation of other evidence, which, if produced, will
remove the objection. In such cases, a final decision on the objection can be postponed to
a later stage but, at any rate, it must be decided before the Court proceeds to judgment.
Omission in this respect is likely to prejudice the party producing the evidence by letting
the matter remain in a dubious state and then depriving the party tendering the evidence
of an opportunity of making up the defects which in many cases he would be ready to do if
he is told that the objection is allowed as observed hereinbefore.
85. We may make it clear that a ruling as regards admissibility of evidence should be
as brief as possible since no appeal lies against such order, it not being a ‘judgment’. Once
the ruling has been given, there should be no interruption in

Page: 910

the trial and the trial Court should proceed with the trial to judgment without interruption.
In the judgment the order should incorporate fuller reasons, if need be, for holding
particular evidence to be inadmissible.

86. Our above view is in consonance with the view taken by the Privy Council in
Padman v. Hanwanta, AIR 1915 PC 111. It did not permit the appellant to take objection
to the admissibility of a registered copy of a Will in appeal for the first time. It was held
that this objection should have been taken in the trial Court. It was observed (AIR p. 112)
“The defendants have not appealed to His Majesty-in-Council, and the case has been
argued on their behalf in great detail. It was urged in the course of the argument that a
registered copy of the Will of 1898 was admitted in evidence without sufficient
foundation being laid for its admission. No objection, however, appears to have been
taken in the first Court against the copy obtained from the Registrar's office being put
in evidence. Had such objection been made at the time, the District Judge, who tried
the case in the first instance, would probably have seen that the deficiency was
supplied. Their Lordships think that there is no substance in the present contention.”
87. Similar is the view expressed by three Judge Bench of the Supreme Court in the
case of P.C. Purushothama Reddiar v. S. Perumal, (1972) 1 SCC 9. In this case the police
reports were admitted in evidence without any objection and the objection was sought to
be taken in appeal regarding the admissibility of the reports. Rejecting the contention it
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was observed : (SCC p. 15, para 19)

“19. Before leaving this case it is necessary to refer to one of the contentions taken by
Mr. Ramamurthi, learned counsel for the respondent. He contended that the police
reports referred to earlier are inadmissible in evidence as the Head Constables who
covered those meetings have not been examined in the case. Those reports were
marked without any objection. Hence it is not open to the respondent now to object to
their admissibility — see Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.”
88. The aforesaid view has been followed by two Judge Bench of the Supreme Court in
the case of R.V.E. Venkatchalla Gounder (supra) holding the view that the admissibility of
document should be determined as it arises and before the document is marked and
exhibited.
89. The aforesaid view is again reiterated by another two Judge Bench of the Supreme
Court in the case of Smt. Dayamathi Bai v. K.M. Shaffi (supra); wherein the reliance is
placed on the Privy Council judgment in the case of Gopal Das v. Sri Thakurji (supra);
wherein the Privy Council ruled that the objection as to the mode of proof must be taken
and determined as it arises before the document is marked and exhibited.
90. While taking above view, we are also conscious of the another three Judge Bench
judgment of the Supreme Court in the case of Bipin Shantilal Panchal (supra) followed by
another judgment in the case of State v. Navjot Sandhu (supra); wherein the view taken
is that whenever any objection is taken regarding admissibility of the material or any item
of oral evidence such objection should be decided at the last stage of the final judgment.
The said

Page: 911

judgments were followed by the learned single Judge of this Court in the case of Boman P.
Irani (supra).

91. The procedure suggested by three Judge Bench of the Apex Court in the case of
Bipin Shantilal Panchal (supra) for being followed is little different than the view expressed
by the another three Judge Bench judgment of the same Court in the case of P.C.
Purushothama Reddiar v. S. Perumal (supra) followed by two Division Benches of the
Supreme Court in the cases of R.V.E. Venkatachalam Gounder and Smt. Dayamathi Bai v.
K.M. Shaffi (cited supra).
92. Now the question arises as to which of the two views this Court should follow. The
view expressed in Bipin Shantilal Panchal (supra) by the Apex Court is based on the
peculiar factual matrix arising out of criminal trial which was prolonged for almost 10
(Ten) years in breach of fundamental right of the accused under Article 21 of the
Constitution of India guarantying speedy and expeditious trial. The same view was
followed in the case of State v. Navjot Sandhu (supra) involving more or less similar facts
surfaced in a criminal trial. The question referred for our consideration arises out of civil
proceedings governed by the provisions of the Civil Procedure Code. It is well settled that
if certain things are required to be done by the Statute in a specific manner, then it cannot
be done in any other manner as ruled by the Apex Court in the case of Nazir Ahmed v.
King Emperor, AIR 1936 PC 243; State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC
358 followed by this Court in Vanmala S. Aney v. National Education Society, Khamgaon,
1982 Mh. L.J. 403. Thus, mandate of Order XIII, Rules 3 and 4 read with Order XVIII,
Rule 4(1) and consensus of judicial opinion compel us to fall in line with the view
expressed in R.V.E. Venkatachalam Gounder and Smt. Dayamathi Bai v. K.M. Shaffi (both
cited supra).
93. Apart from the above, the principles of stare decisis squarely applies to the case on
hand. In Mishri Lal v. Dhirendra Nath, (1999) 4 SCC 11 (paras 14-22), the Supreme Court
referred to its earlier decision in Maktul v. Manbhari, AIR 1958 SC 918 on the scope of
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doctrine of stare decisis with reference to Hulsbury's Laws of England and Corpus Juris
Secundum and held (at SCC p. 18 para-14) that—
“a decision which has been followed for a long period of time, and has been acted upon
by persons in the formation of contracts or in the disposition of their property, or in the
general conduct of affairs, or in legal procedure or in other ways, will generally be
followed by Courts of higher authority other than the Court establishing the rule, even
though the Court before whom the matter arises afterwards might be of a different
view.”
94. Assuming that it is possible to take different view or work out different procedure
as suggested in Bipin Shantilal Panchal, as long as principle laid down in P.C.
Purushothama Reddiar v. S. Perumal, R.V.E. Venkatachalam Gounder; and Smt.
Dayamathi Bai v. K.M. Shaffi (all cited supra) has been consistently followed in our country
in civil matters, as observed in Mishri Lal (supra), it will be worthwhile to let the matter
rest since a large number of parties have modulated and continue to modulate their legal
relationships based on the settled law.

Page: 912

95. However, by way of exception, the objection relating to the admissibility of the
document requiring resolution of complex issues, having effect of arresting progress of the
matter, or if the admissibility of the evidence is dependent on receipt of further evidence,
then, in such cases the trial Court can, in the interest of justice, defer the issue of deciding
admissibility of the document. In Ram Ratan v. Bajarang Lal (supra), the Supreme Court
has also observed that in a given circumstance a document can be exhibited with the
endorsement made by the learned trial Judge “objected, allowed subject to objection”,
clearly indicating that the objection has not been judicially determined and the document
was tentatively marked. This procedure is to be followed only in exceptional
circumstances. Ordinarily, the objection to the admissibility of the document should be
decided as and when raised without reserving the question as to admissibility of the
document until final judgment in the case. We may make it clear that omission to object
to a document, which in itself is inadmissible in evidence, would not constitute such
document in evidence. It is also duty of the Court to exclude all irrelevant evidence even if
no objection is taken to its admissibility by the parties. The question of relevancy of the
document being a question of law can be raised and decided at any stage of the
proceeding.
96. The cases; wherein Court Commissioner is appointed to record cross-examination,
the Court may decide the question of admissibility of document or proof of such document
before the matter is sent for recording of evidence to the Commissioner in the form of
cross-examination or re-examination or, in a given case, the Court may decide that
question at a subsequent stage. The Court, obviously, has a discretion of recording cross-
examination and re-examination itself. During the cross-examination, if the document is
produced and the question leading to its admissibility is raised, then, the Commissioner
cannot rule the point as to admissibility of the evidence. In such case, the Court
Commissioner is expected to record objection and can give tentative exhibit to the
document subject to the decision of the Court. The Court would then be obliged to decide
the question before the judgment is delivered so that the party producing evidence could
not be deprived of its right to tender evidence or an opportunity of producing fresh
evidence or opportunity of making up defects which in many cases could be remedied, if
he is told that the objection is allowed.
97. The different cases will have different facts. Each case must be dealt with on its
own facts. No straitjacket formula can be evolved. The Civil Procedure Code has been
amended from time to time in order to meet the changing situations. The Courts trying
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the suit or proceedings involving peculiar facts do have a discretion to work out its own
procedure and determine the stage of deciding the admissibility of the documents for the
reasons to be recorded, if it advances the cause of justice without causing prejudice to the
rights of either of the parties. The discretion should not be used fancifully. It is quite
possible that sometimes when party fails to substantiate the allegations, he may resort to
dilatory tactics to harass the opponent by filing irrelevant and frivolous documents to
prolong the continuance of the case. This should be checked by

Page: 913

exercising power available with the Court. As already said, procedure is always evolved to
serve the ends of justice and to avoid miscarriage of justice.

Question-B.
98. So far as Question-B relating to the stage at which objection to the admissibility or
relevancy of evidence contained in the affidavit of evidence filed under Order XVIII, Rule 4
of Civil Procedure Code is no more res integra in view of the three Judge Bench judgment
of the Apex Court in the case of Ameer Trading Corpn. Ltd. (supra); wherein the Court
ruled as under:
“….. If any objection is taken to any statement made in the affidavit, as for example,
that a statement has been made beyond the pleadings, such an objection can always
be taken before the Court in writing and in any event, the attention of the witness can
always be drawn while cross-examining him. The defendant would not be prejudiced in
any manner whatsoever if the examination-in-chief is taken on an affidavit and in the
event he desires to cross-examine the said witness he would be permitted to do so in
the open Court………”
(Emphasis supplied)
99. The reading of the aforesaid extracted portion would go to show that the Apex
Court has clearly ruled that if any objection is to be taken to the statement made in the
affidavit, then such objection should always be taken before the Court in writing and the
attention of the witness should always be drawn while cross-examining him. In other
words, it is not necessary to decide the objections relating to admissibility or relevancy of
evidence contained in the affidavit filed under Order XVIII, Rule 4 of Civil Procedure Code
as they arise. The determination or decision thereon can be deferred to a later stage of the
suit. However, final decision must be recorded before the Court proceeds to judgment. The
irrelevant evidence brought on record can always be excluded as the question of
admissibility of evidence is a question of law. Even the objection that a piece of evidence
which was considered by the judgment was irrelevant can be taken up for first time in
appeal (see Miller v. Madhodas, 23 Ind App 106 (PC). In Narhari v. Ambabai, AIR 1920
Bom 244, it was held that erroneous omission to object to irrelevant evidence does not
make the evidence relevant. Section 33 of the Evidence Act deals with relevancy and not
with the mode of evidence. If the evidence is irrelevant, consent of parties cannot make it
relevant. Thus, more convenient mode is to admit the objection in the first instance,
reserving question of law as to its admissibility until final judgment in the case.
Conclusions:
100. In view of the above analysis of the statutory provisions and our discussion, we,
accordingly, articulate our conclusions as follows:
101. Answer to Question-A:
As already noticed, (i) objection to the document sought to be produced relating to the
deficiency of stamp duty must be taken when the document is tendered in evidence
and such objection must be judicially determined before it is marked as exhibit;
(ii) Objection relating to the proof of document of which admissibility is not in dispute
must be taken and judicially determined when it is marked as exhibit;
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(iii) Objection to the document which in itself is inadmissible in evidence can be

admitted at any stage of the suit reserving decision on question until final judgment in
the case.
102. The Court trying the suit or proceedings as far as possible is expected to decide
the admissibility or proof of document as indicated hereinabove. As we have already added
a word caution that while exercising discretion judiciously for the advancement of the
cause of justice for the reasons to be recorded, the Court can always work out its own
modality depending upon the peculiar facts of each case without causing prejudice to the
rights of the parties to meet the ends of justice and not to give the handle to either of the
parties to protract litigation. The aim should always be to prevent miscarriage of justice
and expedite trial, which is the dire need of the time.
103. Answer to Question-B:
The objection to the admissibility or relevancy of evidence contained in the affidavit of
evidence filed under Order XVIII, Rule 4 of Civil Procedure Code can be admitted at any
stage reserving its resolution until final judgment in the case as held in Ameer Trading
Corpn. Ltd. v. Shapoorji Data Processing Ltd. (supra).
104. Having answered the questions as above, we direct the matters to be placed for
disposal in accordance with law before appropriate Bench.
Order accordingly.
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